Feb. 12, 2013

Written by

Jon Campbell

Albany Bureau

ALBANY — The state’s top health regulator on Tuesday signaled he needs more time to complete his review of large-scale hydraulic fracturing, but the head of the Department of Environmental Conservation said a final decision on fracking may be weeks -- not months -- away.

In a letter Tuesday, state Health Commissioner Nirav Shah said his analysis of the health impacts of fracking will "require additional time to complete based on the complexity of the issues."

With Shah's review still incomplete, the DEC will miss a Feb. 27 deadline to complete a set of proposed regulations for shale-gas drilling. In order to meet that deadline, the agency would have had to issue a dense, several-thousand-page environmental review on Wednesday.

But in a separate statement issued Tuesday, DEC Commissioner Joseph Martens indicated his agency was open to issuing fracking permits without final regulations in place -- so long as Shah’s review doesn’t raise any major issues.

“I’m simply saying we could,” Martens said in an interview with Gannett’s Albany Bureau. “Obviously a lot depends on what Dr. Shah’s recommendations are to me.”

Shah’s review will be completed “within a few weeks,” he wrote.

The DEC first launched its review of high-volume fracking -- known as the Supplemental Generic Environmental Impact Statement, or SGEIS -- in 2008, putting the controversial technique on hold in New York until that document is finalized.

In 2011, the state simultaneously moved forward with a set of proposed regulations for the shale-gas industry and issued revisions in November. With the planned regulations now set to expire, the DEC will have to reintroduce them and put them to at least 45 days of public comment and one public hearing before making them final.

But Martens’ suggestion that the state may issue permits under the safety guidelines in the SGEIS means his department could make a final decision on fracking before the regulatory process is complete – a move that would anger environmental groups and could spur a lawsuit. Such a course had been the DEC’s plan back in 2011, but in September an agency spokeswoman said it was “undetermined” if the state would move ahead without final regulations.

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Fracking supporters, which have urged Gov. Andrew Cuomo’s administration to allow fracking for the economic benefits the gas-rich Marcellus Shale formation could bring to the state’s struggling Southern Tier, were wary of the state’s latest delay in a process that has stretched on for 4.5 years.

“Given the DEC commissioner's assurances that this delay will not mean delays for issuing permits, we respect the administration's need to finish this last study and finally come to resolution,” said Karen Moreau, executive director of the New York State Petroleum Council. “We also know that it can and must end with a decision to move forward with creating jobs in the Southern Tier. The clock is ticking. It's time for action. It's time for safe natural gas development.”

Robert F. Kennedy Jr., chief prosecuting attorney for Riverkeeper and Cuomo’s former brother-in-law, praised the governor Tuesday for “not doing what every other state has done, which is to frack first and ask questions later.”

Kennedy said he’s discussed the issue with Cuomo several times over the last few years, most recently a few weeks ago. Taking more time to complete the health review shows the administration is committed to making a decision based on science, Kennedy said.

“I think that’s the exactly right move to take,” Kennedy said in an interview with Gannett’s Albany Bureau. “I think he’s being deliberative, going step by step and it looks like he’s trying to make a science-based decision.”

Shah’s review will soon take him to Pennsylvania and Washington, he wrote in his Tuesday letter to Martens. The health commissioner said he and his team will receive briefings on an ongoing study by the U.S. Environmental Protection Agency that is assessing fracking’s impact on groundwater, as well as separate health-related studies that were recently launched by the University of Pennsylvania and Geisinger Health Systems.

The Health Department also has extended its agreements with three outside consultants that are assisting in its review, according to Shah. The health experts had finished their work several weeks ago, and two had contracts that were due to expire Wednesday.

“Whatever the ultimate decision on (high-volume fracking) going ahead, New Yorkers can be assured that it will be pursuant to a rigorous review that takes the time to examine the relevant health issues,” Shah wrote.

The Joint Landowners Coalition of New York, a statewide group of property holders seeking to lease their mineral rights to gas companies, issued a statement Tuesday saying it was “extremely disappointed … the state failed to meet another deadline.” The group had threatened to sue the state if the Feb. 27 regulatory deadline wasn’t met.

“The JLC will be monitoring these issues on a daily basis and will continue to evaluate our plans to commence a lawsuit against the state," according to the group’s statement.